Jammu & Kashmir High Court
Anil Kumar Bhatia vs Abdul Salam Loan on 16 November, 2018
Equivalent citations: AIRONLINE 2019 J AND K 595
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No. 129/2014, IA No. 152/2014 c/w
CRMC No. 128/2014, IA No. 151/2014
CRMC No. 127/2014, IA No. 150/2014
CRMC No. 126/2014, IA No. 149/2014
Date of order: 16.11.2018
Anil Kumar Bhatia vs. Abdul Salam Loan
Anil Kumar Bhatia vs. Mohd Ishaq Beigh
Anil Kumar Bhatia vs. Mushtaq Ahmed
Anil Kumar Bhatia vs. Mohd Iqbal Mir
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. M. L. Gupta, Advocate
For respondent (s) : None.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. Since common questions of law and facts arise for consideration in these petitions, these were heard together and are being decided by this common order.
CRMC No. 129/20142. In this petition filed under Section 561-A of the Code of Criminal Procedure Svt. 1989, the petitioner seeks quashing of the proceedings initiated in the complaint titled "Abdul Salam Loan vs. Anil Kumar Bhatia" on 28.05.2012 under sections 417, 420, 406 RPC, pending before court below.
CRMC No. 128/20143. In this petition filed under Section 561-A of the Code of Criminal Procedure Svt. 1989, the petitioner seeks quashing of the proceedings initiated in the CRMC Nos 129/2014, 128/2014, 127/2014 & 126/2014 Page 1 of 9 complaint, titled, "Mohd Ishaq Beigh vs. Anil Kumar Bhatia on 28.05.2012 under sections 417, 420, 406 RPC, pending before court below.
CRMC No. 127/20144. In this petition filed under Section 561-A of the Code of Criminal Procedure Svt. 1989, the petitioner seeks quashing of the proceedings initiated in the complaint titled "Mushtaq Ahmed vs. Anil Kumar Bhatia" on 28.05.2012 under sections 417, 420, 406 RPC, pending before court below CRMC No. 126/2014
5. In this petition filed under Section 561-A of the Code of Criminal Procedure Svt. 1989, the petitioner seeks quashing of the proceedings initiated in the complaint titled "Mohd. Iqbal Mir vs. Anil Kumar Bhatia" on 28.05.2012 under sections 417, 420, 406 RPC, pending before court below.
6. The facts in brief, in all the cases are almost the same, stating therein that the petitioner is dealing in fruit business at Ludhiana and the fruits were being purchased by the petitioner from different parts of the country from fruit growers and was having business dealing with the respondents, who are fruit growers at Ahmadabad Kulgam Kashmir and they used to supply the apples to the petitioner. It is contended that after taking amount in advance from the petitioner, the respondents became dishonest and did not dispatch fruits to the petitioner and the petitioner compelled the respondents to return the amount of advance, so received from him and the respondents in order to cause harassment to the petitioner and to avoid the payment so received by them to the petitioner, the respondents namely, Abdul Salam, Mohd. Ishaq Beigh, Mustaq Ahmed Mir and Mohd. Iqbal Mir, who are closely related, filed different complaints under Sections 417, 420 and 406 RPC before the Courts in Kashmir Valley.
CRMC Nos 129/2014, 128/2014, 127/2014 & 126/2014 Page 2 of 97. The learned Magistrate in Kashmir took the cognizance in the matter and issued the process against the petitioner. It is further contended that respondents were harassing the petitioner under one pretext to another and had managed to file false and frivolous complaints against the petitioner; that the petitioner filed a Criminal Transfer Applications before this Court and this Court vide common order dated 18.04.2006 allowed the transfer applications and transferred all the complaints from the different Courts in Srinagar Valley to the Court of Chief Judicial Magistrate, Jammu. Thereafter, the petitioner preferred petitions under section 561-A Cr.P.C. bearing Nos. 53/2007, 52/2007, 54/2007 & 55/2007 and this Court vide common order dated 18.05.2012 sent back the complaints to the Magistrate concerned to pass appropriate orders in accordance with law after considering the complaint for the purpose of issuing process or otherwise. It is further contended that from the court of learned Chief Judicial Magistrate Jammu, the complaints were transferred to the Court of learned 3rd Addl. Munsiff Judicial Magistrate 1st Class Jammu and the learned 3rd Addl. Munsiff Judicial Magistrate 1st Class Jammu vide order dated 28.05.2012 took cognizance in the matter and issued summons against the petitioner under Section 420 RPC.
8. It is further stated that in the statement, the respondents never deposed that the bills were manoeuvred by the petitioner. It is further contended that on examination of the complaint and the statement recorded, there is not even a whisper of allegations or averments made to constitute an offence after perusing whereof the learned Magistrate could have taken cognizance and have passed the order dated 28.05.2012.
9. The petitioner, being aggrieved of the impugned orders as well as the proceedings being conducted in all complaints, has challenged the same in the instant petitions on the following grounds:
CRMC Nos 129/2014, 128/2014, 127/2014 & 126/2014 Page 3 of 9(a) That no cognizance could have been taken by the learned Magistrate in absence of the list of witnesses, which is mandatory requirement of Section 204 Cr.
P.C. as such, the cognizance has wrongly been taken and requires to be set aside.
(b) That from the bare perusal of the complaint no offence is made out, as such, to prevent the abuse of process of the court of law, the proceedings initiated in the complaint are required to be set aside.
(c) That from the bare perusal of the complaint, it specifically discloses the civil dispute, whereas the respondent has filed the criminal complaint purposefully.
(d) That the learned trial Magistrate while taken cognizance and drawing the order impugned has failed to take note of this aspect and merely reiterated the averments made in the complaint and has nothing stated that how offence is made out and has failed to appreciate the law on the point.
(d) That the proceedings initiated are mala fide filed with a view to cause harassment to the petitioner.
10. This Court while entertaining this petition vide order dated 12.05.2014 had stayed the proceedings in all complaints pending before the trial court. Despite notice, the respondent has not appeared.
11. I have considered the submissions made by the learned counsel for the petitioner and perused the record.
12. Before proceeding ahead, it is apt to reproduce the contents of the complaint filed by the respondent as under:-
"....(1) That the complainant is a fruit grower and is a peace loving citizen, the complainant has no other source to feed his family except the Agriculture.
2)That the complainant is real son of Haji Gh. Mohd Lone and is living in joint family, and do business the name and style of M/s Haji Gh. Mohd Lone Akhal.
3)That the accused dropped his presence in village Akhal inthe month of June 2001 and with dishonest and criminal intentions under a deep criminal policy with an intention to cause wrongful gain by deceitful means made the CRMC Nos 129/2014, 128/2014, 127/2014 & 126/2014 Page 4 of 9 accused to believe for higher rates of fruit and full payment after sale of fruit.
4)That upon the false and dishonest assurance of the accused the complainant despatched two trucks of delicious fruit boxes in the month of October-November 2001 under the challan No. 1 dated 04.10.2001 through truck No. 9208 JKE 318 cases and challan No. 2 dated 27.11.2001 truck N. 343 JKF 421 cases total cases/ paties 739.
5) That the accused assured the complainant that he shall pay the higher rates with compared to other dealers and amount of Rs. 20,000/- were paid as advance.
6) That the complainant on the promise of accused dispatched the said two fruit trucks special quality of delicious.
7) That it was given understand by the accused that an amount of Rs.
1,98,624/- is net balance with him when he visited to the native village of complainant in June, 2002 and assured that the amount shall be sent immediately after his return from Kashmir to Punjab and further asked the complainant to sent more truck loads of fruit to him again.
8) That after some time when there was no payment sent to accused to the complaint, the complainant requested to him to make his payment but he delayed on this pretext or other. The delay in payment by accused caused great loss and injury to the complainant and his family due to shortage of money the mother of the complainant expired due to non availability of medical care as such the accused is liable for punishment.
9) That the complainant filed applications to the fruit unions at Srinagar, Primpora through its president, who also communicated to the fruit union of Ludhiana to send the payment of the complainant but nothing was paid by the accused.
10) That the complainant filed complaint before the Director Horticulture P&M Government of Jammu and Kashmir for this purpose, who got the matter investigated through his Deputy Director Horticulture at Delhi. The Deputy Director investigated the matter on spot and the accused was directed to pay Rs. 1,98,624/- towards the complainant and he further directed the Chairman marketing concerned to recover and same be sent to the complainant grower.
11) That the representation was made to Hon'ble Minister pof Agriculture Jammu and Kashmir Government for the same and the Hon'ble Minister by D.O. letter written to Minister for Agriculture Madam Bathal for recovering the amount of the complainant and same to disburse accordingly but till date no payment has been cleared by the accused and the complainant is facing hardship.
12) That by the acts and deals of the accused it is clear breach of trust on his part besides he has cheated and also has forged with the challan and documents of the complainant besides has dishonestly and with a criminal intention has damaged the approach of the fruit dealers/commission agents towards the growers of the valley, it is also against the trade ethics. As such, CRMC Nos 129/2014, 128/2014, 127/2014 & 126/2014 Page 5 of 9 the accused thus proved dishonest, cheater and fraudulent person, who is liable for the punishment under law.
13) The accused by his criminal intention committed offence under sections 406, 417, 420 RPC and is liable for punishment under law. The offence is committed within the territorial jurisdiction of this Hon'ble Court and therefore the court has jurisdiction to try and entertain the complaint......"
13. In all other complaints contents are same except amounts. Court below on the basis of averments made in the complaints, which were reiterated in the statements recorded under section 200 Cr.P.C, issued the process against the petitioner.
14. I have given my thoughtful consideration to whole aspects of the matter.
There is quite difference between civil and criminal liability. For attracting criminal liability, there should be criminal intention right from the beginning. The basic assumption in criminal liability is that there is both mental element and physical element to the offence. The burden of proof for criminal offences is that of "beyond reasonable doubt. The penalties for criminal offences are fines and imprisonment, as well as other non- custodial punishments. Civil liability gives a person rights to obtain redress from another person e.g. the ability to sue for damages for personal injury. The burden of proof is "the balance of probability" which is much lower than for criminal matters. If there has been a relevant criminal conviction in a particular matter, then the burden of proof in any related civil action is reversed, so that the defendant has to prove that he is not liable. An example of this would be a conviction of a company for breach of health and safety legislation. A civil liability is initiated when a person claims that another person has failed to carry out a legal duty that was owed to him. The said person may come before the court with request that the other person be ordered to fulfil his or her legal duty or fulfil liability and compensation. However, if the defendant is found guilty of criminal charges, this can be used as evidence in a civil liability case.
CRMC Nos 129/2014, 128/2014, 127/2014 & 126/2014 Page 6 of 915. In present case, respondents in the complaints have categorically stated that the petitioner has committed breach of trust. From the bare perusal of the complaints, it is evident that essential ingredients for taking cognizance under Section 420 RPC are totally missing.
16. Now it quite happens of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protects the interests of lenders/creditors. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
17. Apex Court in the case of State of Haryana and others Vs Bhajan Lal and others reported in 1992 Supp (1) SCC 335, has held that where a criminal proceeding is manifestly attended with mala fide intention and/or the proceeding is maliciously instituted with object to serve the oblique purpose of recovering the amount, such proceeding needs to be quashed and set aside. The allegations made in the present complaint, even after taken, as they are, also do not make out ingredients of the criminal offence, though at the most they may attract civil dispute, for which respondent has already taken recourse to the civil law and therefore, on this count also, complaint needs to be quashed and set aside.
18. In G. Sagar Suri vs. State of UP [2000 (2) SCC 636], it has been observed:-
"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal CRMC Nos 129/2014, 128/2014, 127/2014 & 126/2014 Page 7 of 9 court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
19. In Ram Biraji Devi and anr. Vs. Umesh Kumar Singh and anr., reported in 2006 AIR (SCW) 2543, it is held as under:-
"We have given our anxious and thoughtful consideration to the respective contentions of the learned counsel for the parties. On examination of the contents of the complaint, we find that there is not even a whisper of allegation or averment made therein constituting an offence for which cognizance has been taken by the learned Magistrate against the appellants. On the one hand, the complainant himself has stated in the complaint that oral agreement to sell the plot took place in July 2002 and on the other hand, he has alleged that he started paying the consideration amount for the purchase of the plot between 15.7.2000 and 15.12.2002. The version of the complainant is self-contradictory and, therefore, no prima facie case is made out against the appellant involving them in the commission of the alleged offences.
The learned Magistrate in his order has categorically stated that the perusal of the complaint would make it clear that there was a dispute in respect of sale and purchase of land between the parties. In our view even if the allegations made in the complaint are accepted to be true and correct, the appellants cannot be said to have committed any offence of cheating or criminal breach of trust. Neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No criminal case is made out by the complainant against the appellants in his complaint and in the statements of the complainant and his witnesses recorded by the Magistrate before taking of the cognizance of the alleged offences. The averments of the complaint and the statements of the complainant and his witnesses recorded by the Magistrate would amount to civil liability inter se the parties and no criminal liability can be attributed to the appellants on the basis of the material on record. In Trisuns Chemical Industry's case (supra), relied upon by the complainant, this Court held as under:
"Quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. The provision incorporated in the agreement for referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which CRMC Nos 129/2014, 128/2014, 127/2014 & 126/2014 Page 8 of 9 amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases."
There cannot be any disagreement to the well-settled proposition of law that the High Court should exercise its inherent powers in extreme exceptions to quash an FIR or a complaint. The ratio as laid down in Trisuns Chemical Industry's case (supra) is of no help and assistance to the complainant in the facts and circumstances of the present case. The complaint instituted does not disclose that an offence under Section 420 is made out. Cognizance taken by the Magistrate thereon against the appellants for offences u/Ss. 406/419/420 and 120-B IPC are clearly an abuse of the process of court and interference by this Court is expedient in the interest of justice. This is a case of extreme exception where the High Court ought to have exercised its inherent jurisdiction and power to set aside the unwarranted and unjustified order of the Magistrate impugned before it by the appellants.
For the aforementioned reasons, we quash the impugned order of the High Court of Judicature at Patna dated 13.01.2005 passed in Criminal Misc. No.11930 of 2004. Consequently, the complaint filed by the Complainant and subsequent order dated 8.8.2003 of the Judicial Magistrate, Gaya, in Complaint Case No.298 of 2003 T.R. 808/03 whereby and where under cognizance of offence under Sections 406, 419, 420, 120-B, IPC, has been taken against the appellants and summons have been ordered to be issued against them for facing trial for the above-said offences shall also stand quashed."
20. While applying above law to the present cases, I am of considered opinion that criminal proceeding has been initiated only to settle civil liability, which is not permissible under Law. Hence orders impugned are quashed and complaints in question also stand dismissed.
21. These petitions are allowed in the aforesaid terms.
( Sanjay Kumar Gupta ) Judge Jammu 16.11.2018 Narinder CRMC Nos 129/2014, 128/2014, 127/2014 & 126/2014 Page 9 of 9